Every so often I come across something in the news that I just have to write a post about and not just tweet. I've written about internet and law several times before. Today my friend Muthiru on Twitter let me on to this article in the Nairobi News, saying that the Government of Kenya is preparing a law to regulate how Kenyans use Facebook and Twitter.
To quote the article:
State House Director of Digital Communication Dennis Itumbi said bloggers and other social media users were misusing the platforms by spewing hate messages and maligning their perceived enemies as there are no proper laws to guide them.
He said the social media platforms are currently operating on self-regulation, with no laws to guard against misuse of the channels.
The official said many people were using the channels to abuse others or declare some individuals they hate dead since no action could be taken against them.
He said consultations with the police and the Kenya Film Classification Board were being made to curb the spread of hate messages ahead of the 2017 General Election.
The director said the legislation is not targeted at opposition bloggers, rather it was meant to safeguard integrity and protect the public against unwarranted criticism.
The word misuse appears twice in this article. I'm wondering if this is a blatant attempt to bring back the stupid, misused and broadly interpreted Misuse of a Communications Device law which was recently declared to violate our constitution and struck from the law books. This was the law which the government primarily used to prosecute bloggers and social media users in the past. Since then I think those cases have become criminal libel cases, another misused law.
Saying that there no proper laws against hate speech and libel is either extremely ignorant of Mr Itumbi - and he's a very smart and knowledgeable man - or criminally disingenuous, as he tries to sway the public into accepting what will definitely be a bad law.
There are a number of laws that can be used against hate speech. The constitution itself says:
1. Every person has the right to freedom of expression, which includes -
(a) freedom to seek, receive or impart information or ideas;
(b) freedom of artistic creativity; and
(c) academic freedom and freedom of scientific research.
2. The right to freedom of expression does not extend to -
(a) propaganda for war;
(b) incitement to violence;
(c) hate speech; or
(d) advocacy of hatred that—
(i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or
(ii) is based on any ground of discrimination specified or contemplated in Article 27 (4).
3. In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.
Right there in the supreme law of the land, it's clearly defined what the limitations of freedom of speech are. Section 2 is further defined in the law establishing the National Cohesion and Integration Commission (NCIC), while Section 3 is covered by the Defamation Law under which an individual can seek damages for slander of their name.
Each of these laws prescribes the means and the bodies through which action against what Mr Itumbi has described as "people misusing the platforms to spew hate and malign their enemies". No reason has been given so far as to why these have not been used or why they are inadequate. Before we go expanding the scope of the law, let's try operating within it, okay?
Perhaps what Itumbi doesn't want to say is that the government doesn't know how to prosecute offenders of these laws. Perhaps there are too many offenders, the burden of proof too high, or maybe the government is just inept.
Why they're be having these discussions with the Kenya Film Classification board and not the NCIC a body that is actually mandated to do this work is beyond me. The KFCB has been unlawfully expanding it's mandate, led by the self promoting Ezekiel Mutua, in way that should worry all Kenyans.
The article ends with the truth about what this law will be really about, prosecuting criticism. As we rapidly approach the election period, the government might be looking for a way to control the narrative to ensure they continue to remain in power.
We as netizens and Kenyans can not simply sit idly by as our hard worn freedoms are violated by the powers that be. We must stand up and let the government know that we will not let them get away with this. A friend once asked me what laws I would risk it all and actually go demonstrate and picket against. This is one such law.
Cover Image by Kiwanja